The Digital Millennium Copyright Act (DMCA) contains provisions
penalizing the circumvention of "technological protection measures".
These measures are digital jails denying users access to the software
and other digital works they possess, preventing them from examining
or changing the software on their devices. While such measures are
nominally meant to protect copyrighted works, in reality they function
as unacceptable restrictions on computer user freedom. The Free
Software Foundation (FSF) opposes such Digital Restrictions Management
(DRM) systems. The FSF further opposes the DMCA's anti-circumvention
provisions, and demands that Congress repeal those provisions. Other
countries with similar laws should follow suit.
Every three years, the Library of Congress reviews proposals granting
limited exemptions from the DMCA's broad ban on users controlling the
software and data on devices encumbered with DRM. This flawed
process
is meant to lessen the DMCA's harm by giving user rights advocates an
opportunity to request exemptions allowing circumvention in particular
cases. Even when such petitions succeed, the resulting exemptions last only three years, meaning that advocates
must repeatedly fight to retain the limited ground they won.
In the round that just concluded, the Free Software Foundation
demanded that the Library of Congress grant every proposed
exemption.
In each comment, we explained the importance of free software;
software that "users are free to study, share and improve," which
enables users to enjoy the universal right of controlling their own
computing. Users have the right to modify and access all software they
possess, regardless of its purpose or on what device it runs. Since
DRM requires proprietary software to take control of a user's computer
away from her, it is fundamentally incompatible with a fully free
world. Users cannot enjoy their rights so long as DRM cages them and the DMCA threatens them to stay in the
cage. There should be no penalties for users controlling their own software
or for sharing tools to help others do the same.
Before outlining the list of
exemptions,
the Library of Congress provides a clear warning (one that did not
appear in previous exemption rulemaking documents) that the potential
scope of its exemptions is limited by law. Specifically, it makes
clear that under Section 1201, it cannot make it legal for a person to
share her methods for circumventing some digital restriction
technology, including "products and services that are used to
circumvent technological measures that control access to copyrighted
works (for example, a password needed to open a media file)," or
"products and services used to circumvent technological measures that
protect the exclusive rights of the copyright owner in their works
(for example, technology that prevents the work from being
reproduced)." (p. 5) It claims that the sharing of passwords and
software is illegal trafficking and that it will take an act of
Congress to change this. Even if the Library of Congress believes it
cannot grant such exemptions, it does have the power to recommend that
Congress to correct this fatal flaw.
Advocates did succeed in securing several important
exemptions. The Software Freedom
Conservancy
successfully won back some rights for Smart TV owners. Although the
exemption granted for Smart TVs is narrower than what was requested,
it allows users to circumvent DRM for the sole purpose of enabling
interoperability of programs on their Smart TVs. The Electronic
Frontier
Foundation
was also victorious in several proposed exemptions. Users of tablets
and multi-player video games run via servers, for example, now have
exemptions protecting some of their uses. Many other users had their
previously granted exemptions maintained, such as those related to
cell phones. The FSF supported these exemptions because they carve out a little more space for user freedom. These victories are a testament
to the dedication and hard work of advocates in the face of a
difficult system. In other areas, however, change was even more
limited.
For example, while the Library of Congress granted an exemption
related to software on motor vehicles and farming equipment, it
limited this exemption to only the owners of the vehicles. Thus, while
users may circumvent DRM on their own vehicles, they may not ask third
parties to do the work. For many users, not being able to have third
parties access software for them is in practice just as bad as not
being able to do it themselves, and denies them fundamental rights of
association and expression. The exemption also does not extend to
"computer programs primarily designed for the control of telematics or
entertainment systems" (p. 43), therefore blocking installation of
many legitimately useful free software programs.
Further, the Library of Congress limited the exemption in light of
regulations unrelated to copyright . In its statement, it says "while
from a copyright perspective proponents had made the case for an
exemption, based on the record, the exemption needed to be carefully
tailored". (p. 42) The Environmental Protection Agency (EPA) opposed
any exemption for motor vehicles, attempting to shoehorn its own
duties regarding emissions control into what is nominally an act
related to copyright. This is despite the fact that the
anti-circumvention provisions of the DMCA actually helped hide
unlawful activity by
Volkswagen
in which they used proprietary software in order to trick EPA tests on emissions.
If users and researchers had been permitted to access the software on
their own vehicles, they may have discovered Volkswagen's fraud years
earlier than the EPA did.
Interference from other government agencies, such as the Food and Drug
Administration, is found throughout the statement on exemptions. These
agencies are not tasked with enforcing copyright. Instead, they are
trying to use the DMCA's penalties to control users regardless of
whether any crime occurs. The government should not presume that all
users are guilty of violating the law, and should not punish all users
in its quest to enforce the law against the few who might break it.
But using DRM to enforce the law does just that, as DRM blocks ethical
and lawful activities. That government agencies are attempting to use
the DMCA to punish and control users based on regulations wholly
unrelated to copyright demonstrates that DRM has nothing to do with
rights, and everything to do with restriction.
While users might feel relief in receiving some exemptions, we cannot
endorse a process that leaves so many out in the cold. While we do
celebrate our victories and those of our allies in this process, the
very real danger is that these exemptions will be used to argue
against us, on the grounds that such "safety valves" are enough to
solve the problems with DRM or the DMCA's anti-circumvention
provisions. They are not. The exemptions process allows users to
partially control some of their devices and software, but robs them of
the necessary tools and the help of third parties. This process
further allows government agencies to co-opt a law nominally about
copyright to implement restrictions wholly unrelated to that area of
law. The FSF calls on Congress to end this broken process and repeal
the anti-circumvention provisions of the DMCA.
